Opinion
March 30, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Sheldon S. Emeson, Denver, for plaintiff in error.
W. D. McClain, Edwin A. Williams, Denver, for defendant in error.
Before COYTE, DWYER and ENOCH, JJ.
DWYER, Judge.
This case was transferred from the Supreme Court pursuant to statute.
The parties appear here in the same order as they appeared in the trial court and are referred to by their trial court designations.
Plaintiff brought this action against defendant under R.C.P.Colo. 105 for the purpose of obtaining an adjudication of the rights of the parties with respect to a parcel of real property on which two dwelling houses are located. By its decree, the trial court determined that the fee title was vested in defendant and, further, that plaintiff had a life estate in the property, but that defendant was entitled to occupy one of the houses during plaintiff's lifetime. Plaintiff, claiming that she has the exclusive right to possession during her lifetime, seeks reversal of this decree.
The decree of the court is based on these facts. Prior to March 30, 1951, plaintiff owned the real estate in fee simple. She occupied one of the houses located on the lot and the defendant occupied the other house as her tenant. In March of 1951, plaintiff was delinquent in her mortgage and tax payments and was about to lose the property through foreclosure. The parties entered into a written agreement, under the terms of which defendant agreed to redeem the property from the foreclosure and tax sale. Plaintiff agreed to convey the title to defendant, subject to a life estate in plaintiff. Defendant agreed to make all future mortgage, insurance and tax payments and to maintain the improvements during plaintiff's lifetime. The trial court found that the parties had agreed that during plaintiff's life estate defendant was entitled to continue in possession of one of the houses. On March 30, 1951, plaintiff executed and delivered the deed in question. Thereafter, for a period of approximately seventeen years, defendant remained in possession of one of the houses and made the payments as agreed. Plaintiff now seeks to have defendant removed from the property.
The instrument in question is designated and is in the usual and customary form of a warranty deed. In the granting clause plaintiff's entire interest in the real estate, together with all improvements thereon, is conveyed to the defendant. In that portion of the deed provided for insertion of exceptions to the warranties, the following appears:
'Purchaser agrees to keep the improvements at all times in good repair, to maintain all payments on any and all indebtedness, to keep all taxes or other levys fully and currently paid to warrant peaceable possession for the life tenant (seller) during her lifetime, which life estate is hereby reserved in and for Olive Wilson, the seller.'
It is obvious that the scrivener of the deed has drafted an ambiguous document. A life estate may be created by a present conveyance to the grantee, reserving to the grantor a life estate. The reservation should appear in the deed as an exclusion from the grant and not as a limitation of the warranty. In the present deed, the reserved life estate appears as a part of an agreement between the 'purchaser' and the 'seller,' which is inserted in the deed. Any interest which plaintiff has acquired is dependent upon a construction of this contractual provision in the deed. This provision was taken directly from the preliminary agreement of the parties. A deed should be given the meaning intended by the parties, and ordinarily that intent must be derived from the contents of the instrument. Moore v. Second Congregational Church, 115 Colo. 392, 175 P.2d 90; Board of Commissioners of El Paso County v. The City of Colorado Springs, 66 Colo. 111, 180 P. 301, 90 A.L.R. 1152. However, where, as here, the deed is ambiguous, resort to extrinsic evidence is required to determine the rights of the parties. See Percifield v. Rosa, 122 Colo. 167, 220 P.2d 546.
The trial court here resorted to extrinsic evidence in arriving at its construction of this ambiguous deed. The trial court's resolution of the controversy concerning the rights of the parties to this deed is correct.
Judgment affirmed.
COYTE and ENOCH, JJ., concur.